Perspectives on where our world is heading from a vantage point in Denver, Colorado.

21 March 2011

Righthaven Loses Fair Use Suit At Trial Court Level

Steve Green reports in the Las Vegas Sun that US District Judge James Mahan has ruled that the Center for Intercultural Organizing, an Oregon nonprofit, did not infringe on copyrights when it posted an entire Las Vegas Review-Journal story on its website without authorization and that there was no harm to the market for the story.

Mahan stressed that his ruling hinged largely on the CIO's nonprofit status and said the copyright lawsuit would be dismissed because the nonprofit used it in an educational way, didn't try to use the story to raise money, and because the story in question was primarily factual as opposed to being creative. 'The market (served by the CIO) is not the R-J's market,' says Mahan.

This is the second fair use defeat for Righthaven and is significant since it involved an entire story post rather than a partial story post. Green says that Righthaven's strategy of suing 250 web site and demanding $150,000 in damages plus forfeiture of the web site's domain name has clearly backfired and now Righthaven, the self-appointed protector of the newspaper industry, has left the newspaper industry with less copyright protection than if they never filed their lawsuits at all.

Righthaven is also making aggressive efforts using the same business model with regard to quotations from Denver Post articles.

This is a positive development for a blogger being sued for the non-commercial use of a single Denver Post photo, where attorneys' pressing copyright violation suits argue that use of a complete picture, even if it is only one in the context of a periodical full of pictures, can never constitute fair use. Text is much more easily excerpted.

Of course, since this ruling is simply a trial court ruling, Righthaven can, and surely will, appeal to the United States Court of Appeals for the 9th Circuit. At that point, the 9th Circuit will evaluate the case under the applicable law given the facts found by the trial court.